Wednesday, August 1, 2012

George Zimmerman and the Right to Violence (Part One)

Posted by
stein

What follows is the first part of an 1800-word piece I wrote after George Zimmerman killed Trayvon Martin. It connects recent events to my research on nineteenth-century violence and criminal justice. I have split it up into parts, and will post a final draft (with footnotes) on SSRN after the series is posted. I hope you enjoy it! And thanks, Karen, for the warm welcome to Legal History Blog!

George
Zimmerman and the Right to Violence

For more than 200
years, the Constitution and common law have not just enabled but tacitly
encouraged citizens to respond to provocation with violent force. Though
scholars have already investigated the developments that eroded the duty to
retreat, a major part of this story has been overlooked: a deep-seated American
apathy toward interpersonal violence. The Stand Your Ground law in Florida
has received intense scrutiny in the aftermath of the killing of Trayvon Martin.
But to understand Stand Your Ground and its roots we have to look well beyond
chapter 776 in the Florida
code.

We all know
how the encounter between George Zimmerman and Trayvon Martin ended, but we
should pay careful attention as we learn more about how it began. Witness
reports suggest that the two were first entangled in a rather run-of-the-mill
scuffle. In this case, however, the violence escalated. Zimmerman had a gun;
his animus and adrenaline likely did the rest.Indeed, many homicides begin as fights
involving individuals who, like George Zimmerman, refuse to back down. The laws
of Florida and the United States entitled Zimmerman to carry the pistol with
which he killed Martin. In decisions like Heller and McDonald,
the Supreme Court has affirmed an individual’s right to bear arms. So emboldening
the public to take matters into their own hands can have calamitous
consequences, given an expansive view of the Second Amendment. A punch-up can
turn into manslaughter in seconds once concealed weapons come out of their
holsters.

Zimmerman
will probably escape conviction for second-degree murder, as the prosecution
will have a very difficult time proving its case. For example, Zimmerman’s
broken nose might be sufficient evidence of self-defense. It is also doubtful
that the prosecution will succeed in proving that the accused had a “depraved
mind” as required by Florida statute. Even if the court deems his defense
“imperfect”, Zimmerman will at most be convicted of manslaughter. It is not entirely surprising that Sanford police department and prosecutor’s office chose not to
prosecute Zimmerman at the outset, but only after a media firestorm demanding
his arrest.

3 comments:

Its been a longtime, almost 30 years since I was in a criminal courtroom, but I believe the Zimmerman defense has a flaw. It would seem his right to self defense claim may be loss by the fact that he was following/stalking Martin. Zimmerman failed to heed police calls to stay put, was a far distance from where he saw Martin. All of this, from media reports, would seem to at least question a self defense/stand your ground ples.

You really need to spend a lot more time with the evidentiary record before you continue pontificating like this. And just for the novelty of it, you might begin from the premise that Zimmerman is not guilty of any crime, and see just how much credible evidence to the contrary you can find. Wallowing around in the issue with this notion of a "scuffle," without asking what evidence shows Zimmerman acted unlawfully towards Martin, just won't do. We're talking proof of murder here.